This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-99-856

Sharron Rivard,
Appellant,

vs.

Lakeview Memorial Hospital Association, Inc.,
Respondent.

Filed December 14, 1999
Affirmed
Willis, Judge

Washington County District Court
File No. C9973953

Bruce P. Grostephan, Peterson, Engberg & Peterson, 700 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for appellant)

Pat Skoglund, Katherine E. Kennedy, Jardine, Logan & O'Brien, PLLP, 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Sharron Rivard challenges (1) the district court's directed verdict on her claim that she was injured by a glass particle or particles in her stomach or lower intestinal tract and (2) the jury's answers to special-verdict questions that found no causation between the piece of glass Rivard ingested and the injuries she claimed. We affirm.

FACTS

On October 16, 1995, while eating at the cafeteria at respondent Lakeview Memorial Hospital (Lakeview), appellant Sharron Rivard swallowed, then coughed up, a piece of glass that was present in a frozen cranberry dessert purchased from, and made by, Lakeview. Rivard alleged that she suffered emotional distress, as well as peptic ulcers, irritable-bowel syndrome, and injury to her pharynx from swallowing the glass, and she sought recovery under theories of strict liability, negligence, violation of Minn. Stat. § 31.001 et seq. (1998) (the Minnesota food law), and breach of implied and express warranties.

Two days after swallowing the glass, Rivard saw Dr. Dennison, an ear, nose, and throat specialist, who noted swelling, similar to that on a scraped knee, in the back of Rivard's throat.

Rivard then developed stomach discomfort that increased over the next few months, and she was referred for an endoscopic examination. She was later evaluated at the Mayo Clinic, and by Dr. Yaske, a gastroenterologist at the University of Minnesota. Dr. Yaske recommended that Rivard seek psychiatric or psychological treatment and referred her to a psychiatrist, Dr. Crow, and a psychologist, Dr. Robiner, both of whom gave depositions that were read into the record at trial.

At the conclusion of Rivard's case, Lakeview moved for a directed verdict. The district court found that Rivard had failed to produce any medical evidence or opinion testimony that a second piece of glass had entered her stomach and granted a directed verdict for Lakeview with respect to Rivard's claim that she had sustained physical injury to her stomach or lower-intestinal tract.

After the partial directed verdict, Rivard's claims for damages for emotional distress and injury to her throat were submitted to the jury. The jury returned a unanimous decision on the special-verdict form, finding that Lakeview had not been negligent and that, although the food Rivard consumed contained a substance injurious to health, that substance was not a direct cause of her injuries.

Rivard moved for judgment notwithstanding the verdict, a new trial, or additur. The district court denied the motion in its entirety and dismissed the action with prejudice. Rivard appeals.

D E C I S I O N

1. Directed Verdict

Rivard argues that the district court erred in granting a directed verdict to Lakeview with respect to Rivard's claim that she had sustained a physical injury to her stomach and lower intestinal tract.

In reviewing a directed verdict, this court makes an independent determination as to whether the evidence was sufficient to present a question of fact for the jury. Nemanic v. Gopher Heating & Sheet Metal, 337 N.W.2d 667, 669 (Minn. 1983). On appeal from a directed verdict, this court "makes an independent assessment of its appropriateness." Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992). A directed verdict should be granted only where it would be the duty of the district court "to set aside a contrary verdict as manifestly contrary to the evidence" or the law. Citizen's Nat'l Bank v. Taylor, 368 N.W.2d 913, 917 (Minn. 1985). In considering a motion for a directed verdict, the district court must construe the evidence, and all reasonable inferences that can be drawn from that evidence, in the light most favorable to the non-moving party. Id.

Rivard argues that the district court abused its discretion by refusing to allow the jury to hear that portion of the deposition of Dr. Crow, Rivard's treating psychiatrist, in which he testified regarding the content of an excerpt of Rivard's gastroenterologic records. Rivard claims that this testimony was necessary to enable the jury to consider the findings of the doctors who had examined her.

It has long been the law in this state that evidentiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the trial court. * * * A trial judge is given wide latitude in determining whether there is sufficient foundation upon which an expert may state an opinion. Even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the trial judge will not be reversed absent clear abuse of discretion.

Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990) (citation omitted). If qualified, experts are permitted to give their opinions on the very issue that the jury must decide. Minn. R. Evid. 702; Minn. R. Evid. 704.

Rivard did not call as witnesses any of the gastroenterologists who evaluated her between 1995 and 1998 for the complaints she attributed to the ingestion of glass. The district court ruled that Dr. Crow, a psychiatrist, was not qualified to give an expert opinion on gastroenterologic matters. We conclude that the evidence supports the district court's ruling.

Dr. Yaske, a gastroenterologist, had asked Dr. Crow to determine whether Rivard's physical symptoms had a psychological basis. Based on his examination of Rivard and on an excerpt from her medical records that was provided to him before his deposition, Dr. Crow stated that, in his opinion, Rivard's emotional problems and gastritis were related to stress over the ingestion of the glass particle that she swallowed and coughed up. He agreed with Mayo Clinic doctors that Rivard had functional gastrointestinal distress of a psychological origin.

In his deposition, which was read to the jury, Rivard's treating psychologist, Dr. Robiner, disqualified himself from giving medical opinions on the nature of Rivard's gastrointestinal problems because his expertise related only to his position as a clinical-health psychologist. He, too, was unaware of Rivard's medical history, but he stated that the glass incident represented an ongoing stressor for Rivard and that somatiform disorder, a psychological condition in which a person amplifies pain symptoms, was a possible diagnosis.

Dr. Dennison appeared at trial and testified that Rivard's swollen throat was resolved when he saw her the week following the incident and that any remaining redness of the vocal chords was due to chronic throat-clearing and coughing, as well as gastric reflux unrelated to swallowing a foreign object. He also testified that he found no evidence of an injury to Rivard's esophagus that might have occurred from swallowing a piece of glass.

Lakeview's gastroenterology expert, Dr. Shaw, testified that he had reviewed Rivard's medical records and it was his opinion that no physical injury occurred to her gastrointestinal tract as a result of the incident. Lakeview's expert psychologist, Dr. Zelles, testified that he also had reviewed Rivard's medical records, noting that she had been evaluated and treated for numerous chronic-pain conditions before October 1995. Dr. Zelles gave his opinion that the records confirmed that Rivard had somatiform disorder, converting emotional distress into physical symptoms or amplifying physical symptoms.

Finding that the testimony presented described only a possible minor physical injury to Rivard's throat and that she had failed to produce any medical evidence or opinion testimony that a second piece of glass had entered her stomach, the district court granted a directed verdict in favor of Lakeview with respect to Rivard's claim that she had sustained a physical injury to her stomach and lower intestinal tract. The district court based its finding partially on Dr. Dennison's testimony that there was no evidence of injury to Rivard's esophagus consistent with passage of a piece of glass and that x-rays did not reveal the presence of such a particle in the esophagus or stomach. The court also based its decision on the testimony of Dr. Crow and Dr. Robiner, who both opined that Rivard's stomach pain was causally connected to the incident of swallowing the piece of glass that was recovered only because of stress the event caused her.

We conclude that the evidence supports the district court's finding that Rivard failed to present sufficient evidence to provide a question of fact for the jury on her claim of injury to her stomach or lower intestinal tract.

2. Special Verdict

Rivard argues that a new trial is required because the jury's answers to the special-verdict questions were inconsistent and not justified by the evidence presented at trial. The jury determined that the food Rivard consumed contained a substance injurious to health but that the substance was not a direct cause of her injuries. Rivard contends that the answer to the direct-cause question is inconsistent with Dr. Dennison's testimony that the swelling he observed three days after the incident was due to swallowing a foreign object.

The district court has broad discretion in framing special-verdict questions. Dang v. St. Paul Ramsey Med. Ctr., 490 N.W.2d 653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992).

On review, answers to special verdict questions will not be set aside unless they are perverse and palpably contrary to the evidence or where the evidence is so clear to leave no room for differences among reasonable people. The evidence must be viewed in a light most favorable to the jury verdict. If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed.

Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citations omitted), review denied (Minn. Feb. 12, 1993).

The district court found that there was conflicting testimony as to the cause of Rivard's sore throat and that her own witness, Dr. Dennison, testified that the redness was caused by coughing and chronic throat-clearing or gastric reflux. The district court also found that, on the basis of the evidence presented on Rivard's pre-incident history of chronic stomach pain, there was no inconsistency in the jury's conclusion that the piece of glass Rivard coughed up was not causally connected with the injuries she claimed.

We conclude that the evidence supports the district court's finding that the jury's answers to the special-verdict questions can be reconciled.

Affirmed.